Importance of Domicile

The term domicile is not defined, explained and discussed in the Law Reform (Marriage and

Divorce) Act 1976 (LRA 1976). However, this term is mentioned in some provisions of the

LRA 1976. There is also no specific statute or statutory provision governing the term. In the

absence of such statute or statutory provision, the common law is still applicable for the rules

pertaining to domicile in Malaysia. Thus, in Nanthivarman a/l Pichamuthu Mookiah v

Sharmini Pillai [2011] MLJU 908, the court states that the law in Malaysia regarding domicile

is still based on common law.

According to The Shorter Oxford English Dictionary, domicile means a place of residence

or ordinary habitation; a house or home; the place where one has his permanent residence, to

which, if absent, he has the intention of returning. The meaning and definition of domicile were

elucidated by the Private International Law Committee in its First Report in 1954, in which

it was said to mean the legal system within whose jurisdiction an individual makes his or her

home, intending to remain there permanently.

Domicile and citizenship are two different matters. Domicile determines a person’s civil status,

such as his rights and duties in family law, while citizenship determines his political status,

such as his right to vote or to participate in a referendum. The term domicile may be

differentiated from residence. A person can have only one domicile at one time whereas he can

have more than one place of residence at one time. A person may be domiciled in one place

but resident in another place. There are four types of domiciles, namely domicile of origin,

domicile of choice, domicile of dependence and matrimonial domicile.

The domicile of a party is significant for the application of the LRA 1976. S. 3(1) of the LRA

1976 provides that the Law Reform (Marriage and Divorce) Act 1976 shall be applicable to all

persons in Malaysia and to all persons domiciled in Malaysia. S. 3(2) of the LRA 1976
stipulates that a person who is a citizen of Malaysia shall be considered to be domiciled in

Malaysia.

S. 26(1) of the LRA 1976 provides that where either party is not domiciled in Malaysia, the

proposed marriage, if solemnised, must be regarded as valid in the country where such party is

domiciled, before the marriage could be solemnized. The issue of domicile is important for

marriages solemnized overseas but in accordance with the LRA 1976. S. 26(1) of the LRA

1976 provides for marriages solemnized overseas but in accordance with the LRA 1976,

whereas S. 104 of the LRA 1976 provides for marriages solemnized abroad according to the

law of the foreign country concerned. Thus, the issue of domicile is important for marriages

solemnized overseas according to the law of the foreign country. S. 105 of the LRA 1976

provides that the issue of domicile is important for the recognition of foreign marriages

contracted in any foreign Embassy, High Commission or Consulate in Malaysia. S. 49 of the

LRA 1976 provides that the court has the jurisdiction to entertain proceedings by a wife

although the husband is not domiciled or resident in Malaysia under certain circumstances.

S. 48(1)(c) of the LRA 1976 requires that the domicile of the parties to the marriage at the time

when the petition is presented is in Malaysia before the court has jurisdiction to entertain the

petition. The case of Joseph Wong Phui Lun v Yeoh Loon Goit [1978] 1 MLJ 236 is an

example where the Singapore court had jurisdiction to do so because the court was satisfied

that the petitioner husband had acquired a domicile of choice in Singapore. In Paramesuari v

Ayadurai [1959] MLJ 195, the court was also satisfied that the petitioner and the respondent

were domiciled in the Federation of Malaya at the relevant point of time. In Kanmani v

Sundarampilla [1957] MLJ 172 and Melvin Lee Campbell v Amy Anak Edward Sumek

[1988] 2 MLJ 338, a change of domicile could not be proved resulting in the court having no

jurisdiction to entertain the respective divorce petition. The same situation arose in the
Singapore cases of WT Berge v Salamah bte Salim [1979] 1 MLJ 18 and David Arrowsmith

v Chang Lee Chin [1983] 1 MLJ 143.

In Long Yan Fei v Pauls Baya [2001] 4 MLJ 373, the petitioner (wife) and the respondent

contracted the marriage at the Bintulu Marriage Registry in Sarawak. They had cohabited in

Kuala Lumpur. After some differences, the respondent moved to Kuching while the petitioner

continued residing in Kuala Lumpur. The petitioner petitioned for a divorce and the issue

whether the High Court in Malaya possessed jurisdiction to entertain the petition arose and the

petitioner contended that since the respondent was domiciled in Sarawak, therefore the High

Court of Sabah and Sarawak had the correct local and territorial jurisdiction of the case. In this

case, the court held that section 48(1) of the LRA 1976 elucidates that when parties seek a

divorce, both parties must be domiciled in Malaysia. Therefore, since the petitioner and the

respondent were domiciled in Malaysia when the presentation of the petition was made, the

High Court of Malaya has jurisdiction to hear the case.

Under the common law, domicile is also significant in determining the validity of a marriage.

The case of Re Maria Huberdina Hertogh [1951] MLJ 164 illustrates this clearly. Before a

marriage can be valid, it must be valid in accordance with the law of the domicile of both

parties to the marriage. One exception is where the marriage is valid according to the law of

the domicile of one party and the marriage is solemnized in the country where that party is

domiciled. Such a marriage is valid although it may not be valid according to the law of the

domicile of the other party.

In legitimacy, domicile is significant in two aspects, the first is in relation to S. 75(3) of the

LRA 1976 and the other is in relation to S. 4 of the Legitimacy Act 1961. According to S. 75(3)

of the LRA 1976 read together with subsection (2) thereof, the child of a void marriage shall

be treated as the legitimate child of his parent if, at the time of the solemnization of the marriage,
both or either of the parties reasonably believed that the marriage was valid, and if the father

of the child was domiciled in Malaysia at the time of the marriage. If the first requirement is

satisfied but the domicile of the father could not be proved to be in Malaysia at the time of the

marriage, the child would not be treated, as the legitimate child of his parent. S. 4 of the

Legitimacy Act 1961 provides for the legitimation of children. Where the parents of an

illegitimate person marry or have married one another, whether before or after the prescribed

date, the marriage shall, if the father of the illegitimate person was or is at the date of the

marriage domiciled in Malaysia, render that person, if living, legitimate from the prescribed

date or from the date of the marriage, whichever be the later. If all the other requirements are

satisfied but the domicile of the father at the date of the marriage could not be proved to be in

Malaysia, the child cannot be legitimated by this section.